The headline out of United States v. Hemani was unmistakable: a unanimous Supreme Court held that habitual marijuana use, standing alone, cannot strip an American of his Second Amendment rights, and 18 U.S.C. § 922(g)(3) fell as applied. That result earned its coverage. But the most consequential move the Court made drew almost no discussion. Only two Justices were willing to bring interest balancing back into Second Amendment law — the discredited regime of tiers of scrutiny that, for a decade after Heller, let lower courts wave through nearly every gun-control law they saw. Seven refused. That refusal, not the marijuana holding, will ultimately decide the AR-15, magazine, and suppressor cases now climbing toward the Court.
Justice Brown Jackson’s Bid to Bring Interest Balancing Back
The campaign came from Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor. Both agreed Mr. Hemani should win. But Justice Jackson wrote separately to argue that the Supreme Court reached the right result by the wrong route. She opined that New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), and its command to decide Second Amendment cases by text and history, should be scrapped in favor of the lower courts’ pre-Bruen approach. She did not hedge:
[M]eans-end scrutiny — the approach courts applied before we adopted Bruen’s “history and tradition” metric — offers a more rational way of assessing the constitutionality of firearm regulations… . Bruen is unworkable. It imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer contested historical questions and applying those answers to resolve contemporary problems. Given those challenges, it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws.
The “more rational way” she prefers is the machinery I have warned about for years: once a court concedes that a law burdens the right, the government gets a second bite, parading forth public-health experts who inevitably testify that guns are too dangerous to be in a modern, civilized society until a judge deems the state’s interest weighty enough to override the Constitution. In other words, interest balancing allows the government to infringe upon a fundamental constitutional right provided that a judge finds the governmental interest at stake sufficiently important. That is not how our Constitution should work.
Interest Balancing Is a Doctrine With No Founding Pedigree
The interest balancing of rights — sometimes referenced as tiers of scrutiny — has no claim on the Second Amendment. The tiers of scrutiny are a mid-twentieth-century invention, as explained by constitutional scholars Joel Alicea and John D. Ohlendorf in their seminal article in National Affairs back in 2019. Interest balancing appears nowhere in the Founding-era understanding of any right, and the generation that ratified the Bill of Rights would not have recognized it. The framework is also structurally incompatible with an enumerated guarantee.
Alicea and Ohlendorf write that the tiers-of-scrutiny framework ought to be abandoned:
The tiers of scrutiny have no basis in the text or original meaning of the Constitution. They emerged as a political solution invented by the justices to navigate internal factions at the Supreme Court, and they do not withstand critical analysis even on their own terms. Not only do they have no place in Second Amendment jurisprudence; they have no place in American constitutional law. The Roberts Court would have few accomplishments of greater significance than the repudiation of the tiers of scrutiny and the reassertion of a method of constitutional analysis based on the text, history, and tradition of the Constitution.
Balancing begins only after a court has already found that the government infringed a constitutional right, and then asks whether the infringement may stand anyway — inverting the entire premise of a written right. On the right to bear arms, the Supreme Court settled this in District of Columbia v. Heller, 554 U.S. 570 (2008), and has never retreated:
The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
”We the People” Already Struck the Balance
There is a deeper answer to Justice Jackson, and it is the one I find decisive. When critics insist the Second Amendment must be weighed against public safety, they assume the weighing has not been done. But it has. The Bill of Rights is itself a ledger of the costs a free people accept to remain free. The Fourth Amendment lets some guilty defendants walk when police violate a warrant. The Fifth Amendment lets the accused refuse to testify against himself. The Confrontation Clause can collapse a prosecution of a guilty criminal. Every one of those rules carries a real social cost, and the people adopted each anyway, because they made the trade in 1791 and chose liberty. The Second Amendment is no different. It is the product of that same balance, struck by the people and fixed in the founding charter. A judge who reweighs it does not refine the Constitution. He overrules it.
Why Justice Brown Jackson’s Silence on Heller Matters
The most important passage in Justice Jackson’s concurrence is the one she never wrote. She assailed Bruen’s method, but she did not lay a finger on Heller or on McDonald v. City of Chicago, 561 U.S. 742 (2010) — the rulings that protect arms “in common use” and exile only those arms found to be “dangerous and unusual.” Those holdings, not the scrutiny tiers, are the binding standard in the cases that matter most: the bans on AR-15s, on standard-capacity magazines, and on suppressors. If the Court’s two most skeptical members will not touch Heller, those arms-ban laws are living on borrowed time.
Then consider who would not join the revival. The call for interest balancing drew exactly two votes and could not attract one more — not even Elena Kagan, the former dean of Harvard Law School and the ablest liberal on the Court, who refused to sign Justice Jackson’s opinion and instead joined Justice Alito in concurring only in the judgment. When a doctrine cannot win the vote of the Justice best positioned to embrace it, that doctrine is finished. Hemani freed one man. The Supreme Court’s refusal to revive interest balancing will protect everyone else.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.